Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns

Monday, April 13, 2009

Copyleft's plea to Obama falls on deaf ears as another Jenner music litigator heads to DOJ; Gershengorn will head Federal Programs Branch

Well, it looks like the copyleft's recent letter to President Obama lamenting that "several of your appointees to positions that oversee the formulation and implementation of IP policy have, immediately prior to their appointments, represented the concentrated copyright industries" went into a big, giant black hole.

According to BLT, Gershengorn will oversee the Civil Division's Federal Programs Branch, which is responsible for defending federal statutes against constitutional attack. Lawyers in the Federal Programs Branch represent the government in the Tenenbaum and Cloud cases, where DOJ has intervened to defend the constitutionality of the Copyright Act's statutory damages provisions.

You seem to be writing your blog with the vigor of a polemicist. One needn't be a "copyleftist" to oppose packing the DOJ with an over representation of lawyers associated with a particular industry. Corporations have enough disparate influence already. There is no reason to opine for more disparate influence.

Copyleft is a term of art for a copyright license that allows for greater public use. Copyleft **relies** on copyright law.

As I've explained several times before, the term "copyleft" has more than one meaning. One is the type of license to which you refer. The other -- and the way that I and many others use the term -- is to refer to the broad legal/social/political movement that opposes strong copyright protection (sometimes called the "free culture" movement). The letter to Obama that I quoted was signed by many groups that make up the copyleft.

And you misread my post if you believe that I was "opin[ing]" for anything regarding Obama's appointments. I was mainly noting the irony that so many on the copyleft enthusiastically supported Obama during the campaign, only to be "rewarded" by seeing their ideological opponents in the copyright wars appointed to prominent positions at DOJ.

"copyleft enthusiastically supported Obama during the campaign, only to be "rewarded" by seeing their ideological opponents in the copyright wars appointed to prominent positions at DOJ."

I think that those who support originalist copyright knew full well that and Obama administration was going to potentially have copyright maximalist overtones. VP Joe Biden has a history of support for expansive RIAA viewpoints. While Obama's DOJ appointments do not bode well for copyright originalists, such a position is a dissapointment, not a surprise.

As to copyleftists, yes, there is a political movement. But only a minority of copyright reformers would call themselves such. It is not the broad term you claim it to be, though it is a catchy one. I think your use of the term was not, in the aggregate, accurate.

Regardless of how one feels about these complex music and media issues, it is clear that these are extraordinary attorneys from an outstanding firm. Yes, Jenner represents music companies, but I highly doubt music factored into the decision at all. More relevant is that Jenner is a well-regarded law firm based in Chicago, the President's hometown. I've personally worked with some of the Jenner attorneys in question, and they are not only exceptionally skilled, they also displayed impeccable ethics and moral judgment. These are good appointments, and I hope we see more Jenner attorneys hard at work for our government.

And remember that Tom Perrelli, the first of the Jenner appointments, was a classmate and friend of Obama's from the Harvard Law School class of 1991, and they were on law review together. I strongly suspect that Perrelli played some role in helping secure jobs for his Jenner colleagues (who are all highly qualified in any event).

Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

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About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

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